Nine amends its defamation defence case against Ben Roberts-Smith
Nine newspapers have made a string of changes to their defence in a defamation case brought against them by Ben Roberts-Smith.
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On the day that Victoria Cross winner Ben Roberts-Smith was originally alleged by Nine newspapers to have dragged an Afghan adolescent from a Toyota HiLux and killed him, the SAS veteran was actually in another part of Afghanistan winning another commendation, according to court papers.
A year after lawyers for Mr Roberts-Smith pointed out the inconsistency, Nine’s legal team amended their defence, saying the incident happened on a different date.
It is one of a string of changes to Nine’s defence, including this week stating it would no longer be “pressing the allegations” that the death of an Afghan man on the banks of the Helmand river constituted murder.
Mr Roberts-Smith is suing Nine and its journalists Nick McKenzie, Chris Masters and David Wroe over a series of articles he claims portray him as a murderer and war criminal.
Nine originally alleged that Mr Roberts-Smith pulled a young Afghan male from a Toyota HiLux and shot him on October 21, 2012.
It now says the incident happened on November 5, 2012 and has removed the description of him as an adolescent in part of the defence.
In July last year, presiding judge Justice Anthony Besanko allowed the date change which came after Mr Roberts-Smith provided evidence that he was in a different part of Afghanistan on a mission for which he received a commendation on that date in October.
NO WITNESSES
Justice Besanko noted that Mr Roberts-Smith denied the incident ever took place and that it relied on an alleged conversation.
He said at the time that “there are no other witnesses or potential witnesses” to the alleged shooting.
The lawsuit says The Sydney Morning Herald and The Age reported: “The applicant, while a member of the SASR, murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to kill him.”
Mr Roberts-Smith denies the allegation while Nine’s defence is that the articles are true. Nine claims Ali Jan was singled out and taken to the edge of the cliff after he was one of three Afghans arrested and handcuffed in Taliban controlled Darwan on September 11, 2012.
“The applicant then took a number of steps back before he moved back towards Ali Jan and kicked him hard in the midriff/abdomen causing him to fall back over the cliff and land in the dry creek bed below,” the defence filed by Nine’s lawyers says.
EXECUTION CLAIM
The original stories and subsequent defence alleged that Mr Roberts-Smith told a translator to order a member of the Afghan partner force to execute Ali Jan.
This was witnessed by a member of the SAS known as Person 4, Nine claimed in its defence.
But in May last year, Nine sought leave to change its defence saying that the member of the Afghan partner force may not have actually been there when the alleged incident occurred.
Mr Roberts-Smith’s lawyer flew to Houston in Texas to try to speak to the interpreter but he refused.
He then also refused to talk to Nine’s lawyers and was dropped from the defence line-up.
He was also intended to be a witness in an alleged murder of a man on October 12, 2012, after the SAS found guns and RPGs hidden in a wall.
The Federal Court heard the SAS soldier known as Person 4, who was set to be a key part of Nine’s defence, has never spoken to the media giant and had no idea they were relying on his evidence.
This also impacts Nine’s allegation that Mr Roberts-Smith was present when Person 4 was ordered to kill an Afghan to “blood” him during a raid on a compound on April 12, 2009.
conflicting account.
CONFLICTING ACCOUNT
Nine’s lawyers have indicated they are yet to prove who actually killed Ali Jan.
They have called on four Afghan witnesses to testify on the matter. Their evidence submitted to date appears to conflict with earlier evidence from the interpreter that Ali Jan was shot in the bushes. One said Ali Jan was dragged by two short in stature soldiers to a cornfield.
Mr Roberts-Smith stands at more than 2m tall.
Another said he saw the body in a cornfield, while a third Afghan witness claims to have seen the body under a berry tree.
Justice Besanko ruled out the amendments in Nine’s original form because they were “evasive, ambiguous and do not provide the applicant with fair notice of the case he has to meet.” The judge has since given permission for the four Afghan witnesses to give evidence by videolink.
The amendments came after it was revealed on Thursday that Nine’s lawyers would also be no longer “pressing the allegations” that Mr Roberts-Smith had swum across a river in the Afghanistan village of Darwan on September 11, 2012, and hunted down an “unarmed” Afghan, who fled a compound during a coalition mission.
A Nine spokesman said the allegations contained in paragraphs 98-101 in its amended defence “are not necessary for our truth defence”.
The trial is due to start on June 7.
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